Dolan v. United States


Under 18 U.S.C. § 3664(d)(5), does a district court have the authority to impose a restitution order more than 90 days after sentencing?

Oral argument: 
April 20, 2010

In 2007 petitioner, Brian Russell Dolan, pled guilty to assault resulting in serious bodily injury. The United States District Court for the District of New Mexico sentenced Dolan to 21 months in prison. At sentencing, the district court recognized that restitution was required by the Mandatory Victims Restitution Act, but declined to issue a specific restitution order without first receiving more information regarding payments owed. Two hundred and nine days after sentencing, the district court issued a restitution order requiring Dolan to pay $104,649.78. Dolan, claiming that 18 U.S.C. § 3664(d)(5) precludes ordering restitution more than 90 days after sentencing, argued that the district court lacked the authority to order restitution. The United States, on the other hand, insists that a district court’s failure to meet the 90-day deadline does not extinguish its authority to order restitution. Both the district court and the United States Court of Appeals for the Tenth Circuit rejected Dolan’s claim, holding instead that district courts retain permanent authority to impose restitution. The Supreme Court granted certiorari to resolve the issue of whether a district court may enter a restitution order beyond the time limit prescribed in 18 U.S.C. § 3664(d)(5).

Questions as Framed for the Court by the Parties 

Whether a district court may enter a restitution order beyond the time prescribed in 18 U.S.C. § 3664(d)(5).


In September 2006, Brian Russell Dolan and Evan Ray Tissnolthtos, members of the Mescalero Apache Indian Tribe, engaged in a brutal physical altercation. . Dolan picked up Tissnolthtos, a hitchhiker and an acquaintance of Dolan’s, in his car, and the two got into a heated argument. Pulling over to the side of the road, Dolan beat Tissnolthtos unconscious and then drove off, leaving him by the side of the road. An officer of the Bureau of Indian Affairs (“BIA”) police later found Tissnolthtos lying unconscious and bleeding on the side of the road. . Tissnolthtos was hospitalized with a fractured nose, a broken wrist, a fractured leg, a spinal injury, broken ribs, and a hematoma in his head. . Dolan was arrested and charged with assault resulting in serious bodily injury. Dolan pled guilty, and on July 30, 2007, the U.S. District Court for the District of New Mexico sentenced him to 21 months in prison. . At the sentencing hearing, the district court recognized that Tissnolthtos was entitled to compensation under the Mandatory Victims Restitution Act (“MVRA”) but left the matter open due to a lack of information regarding Tissnolthtos’ medical costs. . Under MVRA, a court may set restitution after sentencing if there is insufficient information to determine appropriate restitution at sentencing. MVRA provides that “the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.”

The district court entered its judgment on August 8, 2007. On October 5, 2007, the probation office estimated the damages at $105,559.78, but the district court did not hold a restitution hearing until February 4, 2008 — well after 90 days had passed. The district court admitted that it erred by exceeding 90 days but held, over objection, that such did not preclude ordering restitution. Although Dolan’s counsel argued that 90 days was an ironclad deadline, the district court entered a judgment of restitution for $104,649.78. Noting Dolan’s limited financial means, the court ordered that he pay $250 per month toward the sum. The U.S. Court of Appeals for the Tenth Circuit affirmed and the U.S. Supreme Court granted certiorari.


The Mandatory Victims Restitution Act of 1996 (“MVRA”) requires those convicted of violent crimes to make restitution to the victims of their offenses. However, in the event that a victim’s loss is not ascertainable at least ten days prior to sentencing, § 3664(d)(5) provides, in relevant part, that “the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” On July 30, 2007, the U.S. District Court for the District of New Mexico sentenced petitioner, Brian Russell Dolan. Although the probation office prepared an addendum indicating the victim’s medical expenses within the 90-day period, the district court did not hold a restitution hearing until February 4, 2008.

Dolan invokes the MVRA, arguing that the restitution order against him is invalid, because the district court’s authority to enter a restitution order had already expired. Respondent, the United States, concedes that the district court erred by failing to hold a final hearing on restitution within 90 days, but nevertheless contends that a district court’s obligation to order restitution overrides the statutory time limit.

The Language of the Statute

Although 28 U.S.C. § 3664 contemplates that district courts will impose restitution as part of the sentence itself, when a victim’s losses are not ascertainable, § 3664(d)(5) provides courts with additional time after the sentencing to determine the amount of restitution. Dolan asserts that courts undertaking statutory interpretation are to “look first to the language of the statute itself,” and the unambiguous and plain language of 28 U.S.C. § 3664(d)(5) puts a 90-day time limit on a district court’s ability to order restitution. Accordingly, because the 90-day time limit had passed before the district court issued its restitution order, Dolan now seeks reversal.

Conversely, the United States, mindful that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” argues that Dolan’s interpretation of § 3664(d)(5) is erroneous, because it disregards the statutory context. According to the United States, because the MVRA was enacted to make restitution mandatory for all victims of specified crimes, “it would be highly anomalous if § 3664(d)(5) were construed to mean that a district court’s delay in ordering restitution extinguishes the court’s power to make that order, with a concomitant denial of a victim’s rights.”

The Prejudice Requirement

Rule 52(a) of the Federal Rules of Criminal Procedure provides that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Indeed, the Supreme Court has previously held that Rule 52(a)’s “principle of harmless-error analysis . . . is the governing precept in most matters of criminal procedure.” The United States accordingly insists that because the error here is limited to a matter of timing and no actual prejudice or harm resulted from the delay, the district court’s error must necessarily be overlooked.

Dolan disputes the harmlessness of the district court’s error and maintains that the restitution was illegal and violated his substantial rights. Furthermore, Dolan questions the appropriateness of a harmless-error analysis in cases involving properly implicated statutory time limits. Dolan maintains that “[w]here Congress has crafted a clear rule regarding criminal sentencing, there is no reason to undermine the certainty it provides to defendants, the judicial process, and victims.”

The Final Judgment Rule

Dolan notes that because Federal Rule of Appellate Procedure 4 requires the issuance of a final judgment before a defendant may appeal, the Supreme Court has forcefully applied “finality as a condition of review” in criminal cases. Given this special importance of finality in the criminal context, Dolan insists that the 90-day provision in § 3664(d)(5) “is a deadline, rather than an aspirational admonition.” In Dolan’s view, once 90 days have elapsed, the sentence becomes final. Dolan, concerned that allowing district courts to order restitution payments past the deadline would effectively prevent defendants from timely appealing their sentences, insists that such an approach is constitutionally deficient. Conversely, the United States, analogizing to a judgment without a determination of the amount of attorney’s fees to be awarded to a prevailing party, does not anticipate constitutional difficulty. In short, the United States, insists that a judgment is appealable even if it does not specify the amount of restitution.

The Rule of Lenity

Dolan argues that even if the Supreme Court does not accept his other arguments, he is entitled to the rule of lenity, under which an ambiguous statute must be construed in a defendant’s favor. According to Dolan, the district court’s authority to enter a restitution order beyond the 90-day time limit was ambiguous at best. The United States, however, insists that the rule of lenity is meant to ensure that defendants have advanced notice regarding the legality of specific conduct. The United States argues that because § 3664(d)(5) is a procedural regulation rather than a criminal statute, it is incapable of rendering any conduct illegal, and thus, the rule of lenity is inapplicable to Dolan. Furthermore, even if otherwise applicable, the United States posits that the rule is to be reserved for cases involving far more grievous ambiguities than the one in this case.


Underlying the formal legal debate regarding statutory interpretation is a question regarding whom the Mandatory Victims Restitution Act’s (“MVRA”) 90-day time limit was intended to protect. Dolan argues that it protects defendants from a never-ending sentencing period. Dolan argues that such a never-ending sentencing period would prevent judgments from becoming final and, as a result, prevent defendants from appealing their convictions and/or sentences. . Even if appeal from convictions were allowed, Dolan asserts that defendants would be forced to initiate separate appeals for their convictions, prison sentences, and restitution orders, which would burden both defendants and courts. Furthermore, Dolan contends that a strict deadline for restitution orders assures that the best information is available for an accurate determination of damages.

In contrast, the United States insists that Congress intended the 90-day time limit to protect victims. The United States argues that Congress enacted MVRA at a time when victims were viewed not as “mere bystanders,” but instead as “participants who have identifiable rights that both the government and the courts are bound to protect.” In that context, the United States insists that depriving victims of restitution they are due simply because courts missed the 90-day deadline would frustrate congressional intent. Congress, they argue, never intended MVRA to protect defendants from delays in sentencing. Strictly enforcing the 90-day time limit would ignore that MVRA was enacted for the “victims, not the victimizers.” Additionally, the United States contends that protecting victims overrides any ancillary concern regarding piecemeal appeals. The United States notes further that most delays would not be long enough to necessitate multiple appeals.

Supporting Dolan, the National Association of Criminal Defense Lawyers (“NACDL”) argues that interpreting the 90-day time limit as non-mandatory would harm both victims and defendants. . NACDL disputes that Congress enacted MVRA solely for the benefit of victims. . NACDL points to a number of procedural protections that MVRA accords defendants, including, inter alia, assistance of counsel and prompt resolution of potential debts. –Furthermore, NACDL insists that strictly enforcing the time limit advances the interests of not only defendants, but also victims and courts. . It contends that the 90-day time limit ensures that courts will act promptly, thereby providing victims with the “closure” as well as the funds they need to deal with their injuries. . According to NACDL, this benefits both courts and victims by reducing the number of duplicative civil proceedings—a goal of MVRA. Finally, NACDL insists that the criminal justice system is best served by prompt restitution orders, because the longer punishment is separated from a crime, the lesser its ability to deter.


In this case, the Supreme Court will clarify whether, under the Mandatory Victims Restitution Act, district courts retain the authority to impose restitution orders more than 90 days after sentencing.